B.S.V. Prakash Kumar, Member - (1.) The applicant, Bharati Defence & Infrastructure Ltd., through its Resolution Professional appointed in the Corporate Insolvency Resolution Process initiated pursuant to the order of Moratorium dated 6.6.2017 passed by this Tribunal, filed this Miscellaneous Application for transfer of the goods lying at the Respondent's warehouse to the Applicant's warehouse for the purpose of utilising the same, inter alia, for construction of shipping vessels for the Ministry of Defence. The Resolution Professional submits, pursuant to the moratorium order, that he is in the process of taking control of the applicant's assets and operations so as to protect and preserve the company's assets including the assets owned by the applicant that are not in the Respondent possession. The applicant being in the business of building ships, in its regular course of business, on 20.8.2009, entered into a Leave and License Agreement with the Respondent maintaining a warehouse situated at the Village-Bandarli, Mumbra Panvel Road, Dist-Thane for a period of 5 years, commencing from 1.9.2009 to 31.8.2014 for using its premises for commercial purposes of custom bond warehouse for storage of the applicant's ship building material for construction of vessels for its customers. Since the leave and license agreement period came to end on 31.8.2014, the applicant and the Respondent entered into an Amendment Agreement dated 9.5.2016 reducing the licensed premises from 1,00,000 sq. ft. to 25,000 sq. ft. for a further period of 3 years i.e. from 1.9.2014 to 31.8.2017 with a clause of further modification.
(2.) The Resolution Professional submits that the applicant's material worth approximately Rs. 13 crores is still lying in the licensed premises, for having the applicant failed to pay crane hiring charges, transport charges, warehouse rent, labour charges from 30.3.2009 owing to its poor financial situation despite the Respondent on 22.1.2014 requested the applicant to clear all its outstanding dues allegedly pending since February, 2011. Since payment has not been made by the applicant, this Respondent has even filed a Company Petition 948/2015 before the Hon'ble High Court of Bombay on or about 23.1.2015 for recovery of lease rent in respect to the licensed premises making a claim of Rs. 10,96,06,876 against the applicant herein, which is still pending for hearing before the Hon'ble High Court of Bombay. That apart, this Respondent has also made a claim of Rs. 10,96,06,876 plus Rs. 3,89,91,748 for the period from 16.6.2015 up to 6.6.2017 with 18% interest per annum on the principal amount by participating in the Corporate Insolvency Resolution process for recovery of its dues. As against these historical facts, since moratorium has been declared, the Resolution Professional submits that this Respondent ought to hand over all the goods owned by the applicant lying in its warehouse to him so as to enable the Resolution Professional to fulfil the mandate in terms of the Code and the admission order dated 6.6.2017 passed by this Bench.
(3.) As to legal submissions, the Resolution Professional submits that under section 18(f) of the Code, the IRP is required to take control and custody of the assets of the Corporate Debtor as recorded in its Balance Sheet including assets that may not be in the possession of the Corporate Debtor and the same power being extended to Resolution Professional under section 23(2) of the Code, this Respondent shall forthwith deliver the possession of the goods of the Corporate Debtor to the Resolution professional herein. The balance sheet of the company of the year 2015-16 having confirmed that the material mentioned above belongs to the Corporate Debtor, since the Resolution Professional is endowed with the duty under section 25(2)(a) of the Code to take immediate custody and control of all the assets of Corporate Debtor, the Resolution Professional says that he has filed this Miscellaneous Application for suitable directions from this Bench for delivery of the goods lying with the Respondent. He has also mentioned Section 20 of the Code to state that Interim Resolution Professional shall make every effort to protect and preserve the value of the property of the corporate debtor and manage the operations of the Corporate Debtor as a going concern. In addition to it, the applicant submits that under section 14 of the Code, the Respondent shall not withhold the applicant's goods towards lease outstanding dues payable by the applicant because such withholding is not only contrary to the terms of the agreement but also amounts to exercising a security interest which is expressly barred by the order passed under section 14 of the Code.;